Citation NR: 9711201
Decision Date: 04/02/97 Archive Date: 04/14/97
DOCKET NO. 94-09 782 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to an increased evaluation for ulnar
neuropathy of the left arm, currently evaluated as 30 percent
disabling.
2. Entitlement to service connection for median neuropathy
of the left arm, secondary to the veteran’s service-connected
left ulnar neuropathy.
3. Entitlement to service connection for median neuropathy
of the right arm, claimed as secondary to the veteran’s
service-connected right ulnar neuropathy.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S.L. Crane
INTRODUCTION
The veteran served on active duty from August 1965 to August
1968.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a May 1993 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky which denied the veteran’s claim to an
increased evaluation for left arm ulnar neuropathy and his
claim to service connection for bilateral median neuropathy
secondary to his service-connected left ulnar neuropathy.
In a January 1997 VA Form 646, Statement of Accredited
Representation in Appealed Case, the veteran’s representative
argued, inter alia, that the veteran’s neuropathy should be
reviewed under VA regulations governing service connection
for disabilities due to Agent Orange exposure. However, that
issue has not been previously raised by the veteran or
adjudicated by the RO. Therefore, the matter is referred to
the RO for appropriate action.
The Board’s decision on the issue of an increased rating for
ulnar neuropathy of the left are is set forth below.
However, the issues of service connection for left and right
median neuropathy claimed as secondary to service-connected
left ulnar neuropathy are addressed in the REMAND following
the order portion of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that the RO erred in not
granting the benefits claimed on appeal. He asserts that his
service-connected left ulnar neuropathy is more severe than
currently evaluated. He maintains that he experiences
numbness and stiffness in his left hand with restricted use
of the appendage in cold weather. Therefore, a favorable
determination is requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of evidence
is against an increased evaluation for the veteran’s left
ulnar neuropathy.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
RO.
2. The veteran is right-handed.
3. The service-connected paralysis of the left ulnar nerve,
manifested primarily by limitation of motion, decreased grip
strength, atrophy, decreased sensation to light touch, and
denervation activity, and complaints of pain on use of the
hand, results in severe incomplete paralysis of the hand, but
not complete paralysis.
CONCLUSION OF LAW
1. The criteria for an increased rating above 30 percent for
paralysis of the left ulnar nerve have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1,
4.7, 4.10, 4.40, 4.124a, Diagnostic Code 8516 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the claim is well grounded
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that
is, the veteran has presented a claim which is plausible.
See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Further,
the Board is satisfied that all facts relevant to the claim
have been properly developed and that the VA has complied
with its duty to assist as mandated by 38 U.S.C.A. § 5107(a)
(West 1991).
Disability evaluations are determined by the application of
the VA’s Schedule for Rating Disabilities which is based on
the average impairment of earning capacity. Separate
diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1996). Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (1996). Where entitlement to compensation
has already been established and an increase in the
disability rating is at issue, it is the present level of
disability that is of primary concern. Francisco v. Brown, 7
Vet.App. 55, 58 (1994).
In May 1987, the RO granted the veteran service connection
for traumatic left ulnar neuropathy incurred in service after
he fell on a machete. The RO assigned a 20 percent
disability evaluation at that time; however, the disability
evaluation subsequently was increased to 30 percent in a June
1990 rating decision. As the veteran is right-handed, his
left hand is his non-dominant (minor) extremity.
In January 1993, the veteran requested an increased
evaluation for his left ulnar neuropathy, stating that he had
pain and weakness in the hand and stiffness of the fingers of
the left hand. A outpatient treatment report, dated in
February 1993, noted the veteran found it painful to make a
fist and was unable to fully extend the 5th digit (pinkie
finger). Flexion of the remaining digits was intact, but
abduction and adduction of the 4th and 5th digits was
reduced. Progress notes from an April 1993 VA examination
revealed significant decrease in left hand grip strength,
wasted interosseous muscle, decreased sensation at the
hypothenar aspect, and chronic abduction of the first left
digit.
A June 1996 VA examination report included findings of
atrophy of the hypothenar eminence with involvement of the
interosseous dorsalis of the left hand. The hand was motor
positive for decreased bulk and tone. Decreased sensation to
light touch was apparent in the left ulnar region. Nerve
conduction velocity and electromyogram tests produced results
consistent with denervation activity in the distribution of
the left ulnar nerve and evidence of bilateral carpal tunnel
syndrome.
The most VA examination report of record, dated August 1996,
noted similar physical characteristics of atrophy and
decreased tone of the left hand. Finger strength in flexion,
extension, abduction, and opposition was between 3/5 to 5/5.
A diagnosis of old left ulnar injury with denervation
activity was rendered.
The RO evaluated the veteran under 38 C.F.R. § 4.124a,
Diagnostic Code (DC) 8516 (1996) for paralysis of the ulnar
nerve. Under DC 8516, a 50 percent evaluation is warranted
for complete paralysis of the ulnar nerve of the minor hand,
characterized by "griffin claw" deformity, due to flexor
contraction of ring and little fingers; very marked atrophy
in dorsal interspace and thenar and hypothenar eminence; loss
of extension of ring and little fingers with inability to
spread the fingers (or reverse), and inability to adduct the
thumb; and weakened left wrist flexion. Incomplete paralysis
is rated at 30 percent, if severe; at 20 percent, if
moderate; and at 10 percent, if mild.
The Board has considered other potentially applicable
diagnostic codes to assess the severity of the veteran’s left
hand disability and finds that the RO properly evaluated the
veteran under DC 8516. See Schafrath v. Derwinski, 1
Vet.App. 589, 592 (1991). Moreover, the Board finds that the
veteran’s left ulnar neuropathy most closely approximates the
30 percent disability evaluation he is currently assigned.
Although limitation of motion, decreased grip strength,
atrophy, decreased sensation to light touch, and denervation
activity has recently been noted on examination, and the
veteran complains of pain on use of the hand, he does not
have complete paralysis of his left hand; he is able to flex
and extend the digits of the hand and work the fingers in
opposition to each other. However, as VA examiners have
described the veteran’s disability as severe during
outpatient visits and on compensation and pension
examinations, the veteran’s disability picture would appear
to more nearly comport with the criteria for the currently-
assigned 30 percent evaluation for severe incomplete
paralysis..
In evaluating service-connected disabilities, the Board also
considers functional impairment due to pain. The Board
attempts to determine the extent to which a service-connected
disability adversely affects the ability of the body to
function under the ordinary conditions of life, including
employment. 38 C.F.R. § 4.10 (1996). However, functional
loss contemplates the inability of the body to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination and endurance, and must be
manifested by adequate evidence of disabling pathology,
especially when it is due to pain. 38 C.F.R. § 4.40 (1996).
Weakness is also an important factor to be considered in
evaluating functional loss. 38 C.F.R. § 4.45 (1996).
The Board acknowledges that the veteran’s left ulnar
neuropathy is productive of pain with use of the left hand,
and weakness. These symptoms, however, have been taken into
account in granting the veteran a 30 percent evaluation,
notwithstanding the fact that objective evidence of pain on
motion has not been noted on examination. Moreover, any
symptomatology attributable to separate disabilities may not
properly be considered in evaluating the service-connected
disability. As the veteran is not shown to have such
disabling pain and other functional impairment of his left
hand due to his service-connected disability, his disability
picture is not deemed comparable to complete paralysis. See
38 C.F.R. §§ 4.40, 4.45 (1996); DeLuca v. Brown, 8 Vet.App.
202, 206-7 (1995). Accordingly, the Board concludes that an
increased evaluation for left ulnar neuropathy is not
warranted.
The Board’s denial of the instant claim is based primarily
upon applicable provisions of the VA’s Schedule for Rating
Disabilities. The Board finds that the evidence of record
does not present such “an exceptional or unusual disability
picture as to render impractical the application of the
regular rating schedule standards.” 38 C.F.R. § 3.321(b)(1)
(1996). In this regard, there is no indication that the
veteran’s service-connected disability has markedly
interfered with his earning capacity, employment status, or
has necessitated frequent periods of hospitalization. In the
absence of such factors, the Board finds that the criteria
for submission for assignment of an extra-schedular rating
pursuant to 38 C.F.R. § 3.321(b)(1)(1996) are not met. See
Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8
Vet.App. 218, 227 (1995).
ORDER
An increased evaluation for left ulnar neuropathy is denied.
REMAND
Initially, the Board notes that with the veteran filed a
notice of disagreement with the rating decision denying his
claim for bilateral median neuropathy claimed as secondary to
his service-connected left ulnar neuropathy in October 1993,
and a substantive appeal in December 1993. The veteran
subsequently withdrew his claim for service connection for
median neuropathy of the right hand by a letter dated
November 1995. However, in a January 1997 statement, the
veteran’s representative requested that the Board issue a
decision with respect to the veteran’s right hand condition.
In view of the conflicting statements by the veteran and his
representative regarding whether the issue of service
connection for median neuropathy of the right arm, the Board
finds that clarification of this matter is required by the
RO.
The Board also finds that additional development of the issue
of service connection for median neuropathy of the left arm
(and, if still at issue, the right arm) is warranted, as the
etiology of such condition(s) remains unclear. The veteran
has received multiple diagnoses of bilateral median
neuropathy from VA examiners. Most of the examiners focused
on the etiology of the median neuropathy of the veteran’s
right arm and hand with several attributing the condition to
the veteran’s nonservice-connected cervical disc disease.
However, a June 1993 outpatient report noted left median
nerve entrapment at the palm (due to scar from knife wound).
Moreover, a June 1996 nerve conduction study report contained
the neurologist’s impression of “left ulnar and median
neuropathy, secondary to traumatic injury.” The study report
did not include any clinical findings. The most recent VA
examination report of record, dated August 1996, did not
specifically refer to the nerve conduction study report nor
did the examiner address the issue of a possible causal
relationship between the veteran’s left ulnar neuropathy and
left median neuropathy.
Finally, the Board emphasizes that a grant of secondary
service connection is sought with respect to the veteran
median neuropathy of the left (and, possibly, right) arm(s).
A grant of service connection is appropriate for a disability
which is proximately due to or the result of a service-
connected disease or injury. 38 C.F.R. § 3.310(a) (1996).
In Allen v. Brown, 7 Vet.App. 439, 448 (1995), the United
States Court of Veterans Appeals (Court) made clear that
service connection may not only be granted for a disorder
found to be proximately due to or the result of a service-
connected disability, but also when it is shown that the
claimed disorder has been aggravated by the service-connected
disability. In such cases, according to the Court, a basis
exists upon which to predicate a grant of entitlement to
service connection on a secondary basis. Thus, pursuant to
38 C.F.R. § 3.310(a), when aggravation of a veteran's
nonservice-connected disorder is proximately due to or the
result of a service-connected disability, such veteran shall
be compensated for the degree of disability, but only that
degree over and above the degree of disability existing prior
to the aggravation. See also 38 C.F.R. § 3.322 (1996). Such
principles should be considered in adjudicating the veteran’s
claim(s).
Accordingly, the case is REMANDED to the RO for the following
actions:
1. The RO should contact the veteran and
his representative to clarify whether the
issue of secondary service connection for
median neuropathy of the right arm
remains on appeal. The veteran’s
response in this regard clearly must be
documented in the claims folder.
2. The veteran should be scheduled to
undergo for a new neurological
examination. The examiner should be
requested to review the claims folder in
its entirety prior to the veteran’s
examination and must have access to it
during the examination. All clinical and
diagnostic tests should be conducted to
assess the severity of the veteran’s
median neuropathy of the left (and, if
still in issue), the right arm. Based on
the examination’s findings and a review
of the record, the examine should offer
opinions, with supporting analysis, as to
whether it is as least as likely as not
that veteran’s left median neuropathy 1)
is related to any incident of service; 2)
is causally or etiologically related to
the veteran’s left ulnar neuropathy; and,
if not 3) has been aggravated by the
veteran’s left ulnar neuropathy. If
aggravation is found, the degree of left
median neuropathy that would not be
present but for the service-connected
left ulnar neuropathy should be
identified, to the extent possible.
Lastly, the examiner distinguish between
the symptomatology and etiology of any
current median neuropathy and median
entrapment of the left arm. The same
questions should separately be addressed
with respect to the right arm, if still
in issue. The complete rationale for the
each opinion expressed should be set
forth in a typewritten report.
3. The RO should review the examination
report to determine if it is in
compliance with this remand. If it is
not, it, along with the claims file,
should be returned for immediate
corrective action.
3. After completion of the above
development and after giving the veteran
the full opportunity to supplement to
record if so desired, the RO should again
adjudicate the issue of service
connection for left median neuropathy
secondary to left ulnar neuropathy (as
well as the issue of service connection
for right median neuropathy secondary to
left ulnar neuropathy, if still in
issue). In so doing, the RO should
consider all pertinent VA regulations,
including those governing direct service
connection, and those governing secondary
service connection (38 C.F.R. § 3.310(a),
and the Court’s recent Allen, cited
above).
4. If any decision remains adverse to
the veteran, he and his representative,
should be furnished a supplemental
statement of the case and afforded the
appropriate opportunity to respond. The
veteran and his representative are hereby
reminded that to obtain appellate review
of any issue not currently in appellate
status, a timely notice of disagreement
and substantive appeal must be filed.
Thereafter, the case should be returned to the Board, if in
order.
The purpose of this REMAND is to obtain clarification and
additional development. The Board intimates no opinion,
either favorable or unfavorable, as to the ultimate
disposition of the case. No action is required of the
veteran until he is notified by the RO.
__________________________________
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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